Law Commons^™

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Paging Dr. Derrida: A Deconstructionist Approach To Understanding The Affordable Care Act Litigation, Laura A. Cisneros

Publications

Sovereignty federalism and cooperative federalism represent the two dominant federalism narratives among Supreme Court justices and scholars. The Court consistently invokes formal protections to safeguard the states' right to preside over their own empires.' Sovereignty scholars tend to embrace this dualistic vision of federalism that locates federalism's success in the state's ability to exercise supreme policymaking authority within its own sphere of influence without federal interference. By contrast, academics that lean toward cooperative federalism locate the states' power in their position as federal servants, not separate sovereigns. Scholars have commented that even though these academics tend to resist the rigid …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …